The Research Of Slight Defective Evidence

For a long time, slight defective evidence is always the gray area of theorists and practitioners. To circumvent the slight defective evidence, this article is divided into five parts interpretation:The first part, the author illustrates the theoretical basis of the topic, explicates the basic theory of the slight defective evidence. First of all, the author clarifies the concept of the slight defective evidence. The author describes the several views of the concept of slight defective evidence, analyzes and evaluates them and then reconstructs the concept of slight defective evidence:in the evidence collection process, the investigative organs breaches of statutory rules of evidence and obtains evidence of minor offenses. Its basic feature is the procedural of obtaining evidence is non-standard or incomplete. Second, compares the slight defective evidence and related concepts. Discusses the slight defective evidence and evidence illegally obtained, and discusses the slight defective evidence and non-standard evidence. From the comparative analysis, further clarify the concept of slight defective evidence. Finally, divides the range of slight defective evidence. Rely on the concept of the slight defective evidence, to the situations of the investigation organ breaches the rule of evidence, and divides the range of slight defective evidence.The second part, from the perspective of comparative law studies the applicability of the slight defective evidence, selects the typical civil law and common law countries, and introduces the applicability of the slight defective evidence in these countries. First of all, introduces the applicability of the slight defective evidence in the common law countries. Select the applicability of the slight defective evidence in the United States, Britain and Canada for example. Second, introduces the applicability of the slight defective evidence in the civil law countries. Select the applicability of the slight defective evidence in Germany, Japan and Italy and for example. Finally, evaluate the applicability of the slight defective evidence in the two Legal Systems. Either the common law countries or the civil law countries, take a tolerance to the applicability of the slight defective evidence, although the level of tolerance is different. And the author believes that combine with the status quo and foreign practices, it is necessary for us to explicit the applicability of the slight defective evidence by the form of principles and rules.The third part, analysis the ability in law of the slight defective evidence. The ability of the slight defective evidence is the focus of the problem. First of all, analyze all kinds of theories of the ability of the slight defective evidence. To the direct positive point of view, overall deny theory and the Compromise theory, the author describes respectively and briefly. Second, the author reconstructs the ability of the slight defective evidence, believes that the ability of the slight defective evidence is to be determined. There are two argument points; the first one is the strict proof and free proof, the second one is substantive justice and procedural justice.The forth part, studies the slight defective evidence and the applicability of the slight defective evidence in our country. First of all, analyze the reasons for the existence of the slight defective in China. It is an inescapable fact that the slight defective evidences prevalent in the criminal judicial practice in China, The author analyzes from two perspectives: our realistic objective factors and the traditional rule of law. Second, introduce the current legislative situation and judicial review situation of the slight defective evidence. By accessing to relevant laws, the author finds that there is no clear rules about the applicability of the slight defective evidence in our country, in the two regulations which are five ministries jointly issued, it just uses enumerated way to provide the slight defective evidence. Studies the situation of the slight defective evidence investigated by public security and the judiciary in the pre-trial and the trial. Finally, demonstrates the barriers of the applicability of the slight defective evidence in our country. It dues to provisions of the slight defective evidence are too narrow, remedy measures are not clear. And to the evidences obtained by the slight defective evidences, there is no clear provision.The fifth part, illustrates the solution to the applicability of the slight defective evidence, the solution is building judicial remedy system to the applicability of the slight defective evidence. First of all, explains the reasons for building the system. The first reason is the theoretical support; the second reason is the feasibility of judicial remedy. Second, illustrates the systematic construction of the judicial remedy. Clarify the standards, rules and related relief program of the construction.